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Wetland management in Alberta and the new Alberta Wetland Policy

Wetland management in Alberta and the new Alberta Wetland Policy

November 26, 2013

Introduction

On September 10, 2013, the Government of Alberta released the Alberta Wetland Policy (the “New Policy”). The New Policy considers the core principles of Alberta’s Water for Life: Alberta’s Strategy for Sustainability, which was released in 2003 and renewed in 2008 and, according to the Province, reaffirms its commitment to the wise management of water resources for the benefit of all Albertans. The Implementation Plan for the New Policy will be released for the White Zone (settled and agricultural areas) by August 2014 and for the Green Zone (primarily Crown-owned land in the northern part of the province) by August 2015. The New Policy will replace the following two policies which were released in 1993:

The New Policy was enacted pursuant to Alberta’s authority under the Water Act.1 Its stated objective is to minimize the loss and degradation of wetlands while allowing for continued growth and economic development. The goal of the New Policy is to “conserve, restore, protect and manage Alberta’s wetlands to sustain the benefits they provide to the environment, society and economy.” With this in mind, the New Policy states that it will focus on four outcomes:

Protection of wetlands of the highest value for the long-term benefit of all Albertans;

Conserving and restoring wetlands and their benefits in areas where losses have been high;

Avoiding, minimizing, and if necessary, replacing lost wetland value; and

Considering regional context in wetland management.

The New Policy applies to natural wetlands in Alberta, including bogs, fens, swamps, marshes, and shallow open water, in addition to all restored natural wetlands. It also applies to wetlands constructed for the purpose of wetland replacement. The New Policy advocates a mitigation hierarchy whereby avoidance of negative impacts on wetlands is the primary and preferred response, followed by minimizing negative wetland impacts where avoidance is not possible, and wetland replacement as a last resort.

In addition to the New Policy, activities impacting wetlands in Alberta are regulated by provincial and federal legislation and, in some areas, by municipal wetland policies. These enactments, along with the New Policy, are intended to permit a coordinated approach to wetland management among the three levels of government. Federal statutes relevant to wetland management include the Fisheries Act2 and the Migratory Birds Convention Act.3 Applicable provincial statutes include the Water Act, the Environmental Protection and Enhancement Act4 (“EPEA”), and the Public Lands Act.5 An example of municipal wetland policy is the Wetland Conservation Policy enacted by Strathcona County.

This commentary will discuss elements of the legislation and government policies that may be relevant to parties considering activities that could impact wetlands in Alberta.

Wetland management in Alberta: applicable legislation

The New Policy clearly states that it does not exempt a proponent from other regulatory requirements at the federal, provincial and municipal levels. Accordingly, we will start with a high-level review of the legislative requirements that could come into play in respect of activities that impact wetlands.

Federal regulation

At the federal level, both the Fisheries Act and the Migratory Birds Convention Act regulate aspects of wetlands management. The Fisheries Act prohibits activities that result in the harmful alteration, disruption or destruction (“HADD”) of fish habitat,6 unless the activity is otherwise authorized under the Act.7 The Migratory Birds Convention Act prohibits depositing, or permitting to be deposited, a substance that might be harmful to migratory birds in waters, or in a place from which the substance may enter such waters,8 unless such action is authorized under the regulations.

Provincial regulation

Activities impacting wetlands may also be subject to provincial approval or licensing requirements under the Water Act, EPEA, and the Public Lands Act. The purpose of the Water Act is to support and promote the conservation and management of water, including the wise allocation and use of water and it is the primary legislative basis for the New Policy’s implementation. Pursuant to the Water Act and its regulations, activities such as landscaping adjacent to a wetland9 and installing a watercourse crossing through a wetland10 may require a party to apply for and receive an approval. Additionally, diversion of water from a wetland may require a license.11

Alberta Environment can also decide that a particular activity under the Water Act should require an approval under EPEA.12 Additionally, or in the alternative, the EPEA approval process may be triggered independently from the Water Act if the proponent is carrying out activities subject to regulation under EPEA.13 This process may entail conducting an environmental impact assessment and obtaining regulatory approval under that Act. Finally, at the provincial level, a proponent may also require a disposition under the Public Lands Act to carry out activities that could impact wetlands.14

Municipal regulation

Municipalities have jurisdiction to enact by-laws relating to wetland management.15 Strathcona County’s Wetland Conservation Policy is intended to ensure the conservation of wetlands during the process of developing land and constructing buildings and infrastructure. All development initiated by landowner or a third party, including the County itself, is subject to the policy.

Wetland policy mitigation

In addition to existing requirements under applicable federal, provincial and municipal enactments, the New Policy will influence decisions with respect to wetland management. The New Policy supports localized cumulative affects management. This means that site specific regulatory decisions are to be implemented, taking into account local economic, social and environmental priorities.16

The New Policy defines mitigation as "management activities undertaken to avoid and minimize negative impacts on wetlands, and to replace lost wetlands, where necessary."17 To accomplish this, a mitigation hierarchy has been created. The intention is for the mitigation hierarchy to guide the regulatory approval process. In descending order of priority, the three levels of mitigation are: avoidance, minimization, and replacement.

Relative wetland value

Under the New Policy, mitigation requirements for an activity are based on the particular wetland’s “relative value”, being a measure of the wetland’s importance from an ecological and human perspective.18 The relative wetland value uses common metrics to compare wetlands. The metrics are defined by five key functional groups: biodiversity and ecological health, water quality improvements, hydrologic function, human uses, and relative abundance. A summation of these metrics will place each wetland into one of four relative wetland value categories. A wetland value map of the province is to be created to assist with the early stage planning process.

Avoidance

The primary and preferred method of wetland mitigation is avoidance. Avoidance is the prevention of direct wetland impact. Proponents will have the responsibility of demonstrating that avoidance is not justifiable through alternative projects, activities, designs, or sites. What is considered justifiable will be determined by taking into account environmental, social and economic considerations. Stronger evidence will likely be required to demonstrate that an impact on high value wetland is necessary and cannot be avoided.

Minimization

Minimization may be considered once it has been demonstrated that avoidance is not practicable. Minimization is defined as "reducing negative impacts on wetlands to the smallest practicable degree".19 Various mechanisms will be acceptable to minimize wetland impact. The required minimization mechanism will be determined by the type of wetland and its relative value as well as the activity proposed. Minimization should be based on proven approaches; however, the New Policy states that proponents should not be penalized if they implement new or experimental approaches that do not achieve intended outcomes. The proponent will be required to carry the costs of monitoring minimization efforts and it is expected that these efforts will continue through the activity. If minimization efforts fail, resulting in permanent wetland loss, the proponent will be required to fund and implement wetland replacement.

Replacement

Wetland replacement will be required where avoidance and minimization are not feasible or have been ineffective. Replacement requirements will not be necessary where wetlands can be restored to pre-disturbance conditions within a reasonable timeframe. Replacement measures will be implemented through in-lieu fee payments20 or permittee-responsible replacement.

Replacement may be restorative or non-restorative. Restorative replacement will be completed through restoration, enhancement, or construction of new wetlands. Current acceptable non-restorative replacements include research into restoration measures, assisting with higher level monitoring of wetlands, wetlands research, public education, and securing wetlands for long-term conservation.

Replacement requirements are determined by a ratio matrix. The ratio is based on the value of wetland lost and the value of the wetland replaced. The ratio scheme will apply to in-lieu payments and permittee-responsible replacement. The cost associated with in-lieu fees will be established on the basis of four key factors: average cost of restoration, long-term restoration monitoring costs, an administrative fee, and the average value of land within the area of original wetland loss. Paying in-lieu fees under the New Policy will not exempt an applicant from fees that may be required under any other act or regulation. Where permittee-responsible replacement occurs, the New Policy also acknowledges efforts to restore a wetland to a higher value. For example, after removing four hectares of 'D' value wetland, it may be replaced with four hectares of 'D' value wetland (1:1 ratio) or two hectares of 'C' value wetland (0.5:1 ratio).

Though the New Policy provides for minimization and mitigation, it is appropriate that avoidance remains the highest priority in the mitigation hierarchy.

Conclusion

A proponent considering activities that could impact wetlands must be aware of regulatory requirements under federal, provincial, and municipal enactments. The recently released New Policy adds another aspect of wetland management that must be understood and planned for as part of the project development process; it is likely that the principles reflected in the New Policy will be integrated into the legislation, policies, planning, and programs of the Government of Alberta and its partners.

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